Senatorial Courtesy, Blue Slips Caught in the Fallout

Ian Millhiser has a very good piece on judicial nominations and blue slips over at Think Progress. It covers a lot of ground and is a wonderful read.

However, I do have some bones to pick with his take. At the core of Millhiser’s argument are blue slips and their place in Senate history. He contends that blue slips, the process by which home-state senators grant approval to president’s judicial nominees, has little rooting in Senate process and history. There are a couple problems with this.

First, blue slips are the Judiciary Committee’s extension of senatorial courtesy. While the formal practice of blue slips, with letters from the Committee to the nominee’s home state senators, extends back to at least 1917, senatorial courtesy extends to the 1st Congress (1789-1791). There is no formal rule outlining the practice but it stems from a very rich history of “advice and consent.” In this way, blue slips are not unlike many Senate practices. The Senate is heavily guided by customs and precedents. Blue slips are not an aberration to this principle. Rather, they are a modern example of that history.

Second, it is improper to compare today’s blue slip process with those in prior congresses. Given my training is in congressional development and history, this is not an argument I normally make. However, the advent of the post-nuclear Senate has fundamentally changed the importance of the blue slip process.

For most of Senate history, the blue slip process has not been absolute. Failure to approve of a nominee did not prevent floor consideration, though it often meant the demise of the nominee. Today, floor consideration for judicial nominees is fundamentally different. The minority party no longer has the ability to filibuster judicial nominees (except SCOTUS nominees). Because of this, the majority can run roughshod over minority opposition, effectively ignoring their concerns as they approve judicial nominees by majority vote.

This has shifted minority opposition from the floor to the committee room. With no other place to stop or slow the nomination process, it is not surprising that blue slips are now in the crosshairs.

Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, is the first Senator since James Eastland (D-MS) to use blue-slips as an effective veto on a nominee. As Forrest Maltzman and Sarah Binder point out, blue slips were never intended to be a veto. However, Leahy’s position as arbiter of the blue slip is much more precarious post-nuclear option. And in all likelihood it is untenable. Arguments like Millhiser’s illustrate Leahy’s predicament. Either Leahy adheres to his current blue slip practice and hopes Republicans honor it when they retake the majority (either in 2015 or later), or he can ignore it and ensure its demise under Republican majorities.

The nuclear-option has stressed the blue slip process. With no other avenues to object, the minority has turned to its few remaining tools. Unfortunately, the nuclear-option’s collateral damage includes the minority’s role in “advice and consent” on nominations, and now appears to threaten advisory practices that stem from senatorial courtesy.

In a polarized atmosphere it is easy to become frustrated with bipartisan practices, precedents, and customs. However, eroding these customs compromises the Senate’s function as the check on overambitious majorities.